[Cite as First-Knox Natl. Bank v. MSD Properties, Ltd., 2015-Ohio-4574.]

COURT OF APPEALS 

KNOX COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

FIRST-KNOX NATIONAL BANK, et al., : JUDGES: 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiffs - Appellees : Hon. Patricia A. Delaney, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : 

MSD PROPERTIES, LTD., et al., : Case No. 15CA6 

 : 

 Defendants - Appellants : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Knox County Court 

of Common Pleas, Case No. 

14OT11-0371 

JUDGMENT: Affirmed in part; 

 Reversed and Remanded in part 

 

DATE OF JUDGMENT: November 3, 2015 

APPEARANCES: 

For Plaintiffs-Appellees For Defendants-Appellants 

KIM M. ROSE JACK L. MOSER, JR. 

Critchfield, Critchfield & Johnston LTD. 107 W. Johnstown Road 

10 S. Gay Street Gahanna, OH 43230 

P.O. Box 469 

Mount Vernon, OH 43050 
Knox County, Case No. 15CA6 2 

Baldwin, J.

{¶1} Appellants MSD Properties, LTD and Michael Shawn Dennis appeal a 

judgment of the Knox County Common Pleas Court dismissing their claims against 

appellees First-Knox National Bank and Sunny Green LLC. 

STATEMENT OF THE FACTS AND CASE 

{¶2} Appellants MSD Properties, LTD leased property from appellees, which 

they in turn leased to Todd Hempfield as Unit 16, Inc., who operated a bar on the 

premises known as “Banana Joe’s.” According to the pleadings in the case, in March of 

2014, Todd Hempfield as Unit 16, Inc., approached appellee First Knox directly about 

executing a lease agreement for the property. 

{¶3} Appellees provided appellants and Hempfield notice of termination of the 

lease on August 30, 2014, effective September 30, 2014. Appellants remained on the 

property and on October 1, 2014, appellees served a three-day notice to vacate the 

premises. When appellants failed to vacate, appellees filed a forcible entry and detainer 

action in the Mount Vernon Municipal Court. Appellants filed counterclaims for 

retaliatory eviction, tortious interference with a business relationship, and fraud. 

Because the amount of damages sought in the counterclaims exceeded the 

jurisdictional limits of the municipal court, and after the forcible entry and detainer action 

was resolved in the municipal court, the case was transferred to the Knox County 

Common Pleas Court. 

{¶4} Following the transfer, appellees filed a motion to dismiss the complaint 

pursuant to Civ. R. 12(B)(6). Appellants sought leave to amend the pleadings, which 
Knox County, Case No. 15CA6 3 

the trial court did not expressly overrule but implicitly overruled by granting appellees' 

Civ. R. 12(B)(6) motion to dismiss. The trial court dismissed the counterclaims on the 

basis that retaliatory eviction is not actionable under R.C. 5321.02 for a commercial 

lease, appellants had not alleged a set of facts that appellees interfered with a business 

relationship between them and a third party, and appellants failed to plead fraud with 

specificity. 

{¶5} Appellants assign four errors on appeal: 

{¶6} “I. THE TRIAL COURT ERRED, ABUSED ITS DISCRETION AND 

MISCONSTRUED ITS APPLICATION OF OHIO RULES OF CIVIL PROCEDURE 15(A) 

BY IMPLICITLY DENYING APPELLANTS’ MOTION FOR LEAVE TO AMEND 

APPELLANTS’ ANSWER AND COUNTERCLAIMS. 

{¶7} “II. THE TRIAL COURT ERRED, ABUSED ITS DISCRETION AND 

MISCONSTRUED ITS APPLICATION OF OHIO RULES OF CIVIL PROCEDURE 15(A) 

BY REFUSING TO GRANT APPELLANTS’ MOTION FOR LEAVE TO AMEND 

APPELLANTS’ ANSWER AND COUNTERCLAIMS. 

{¶8} “III. THE TRIAL COURT ERRED, ABUSED ITS DISCRETION AND 

MISCONSTRUED ITS APPLICATION OF OHIO RULES OF CIVIL PROCEDURE 

12(B)(6) WHEN IT GRANTED PLAINTIFFS’ FIRST MOTION TO DISMISS 

DEFENDANTS’ COUNTERCLAIMS FOR TORTIOUS INTERFERENCE WITH 

BUSINESS RELATIONS. 

{¶9} “IV. THE TRIAL COURT ERRED, ABUSED ITS DISCRETION AND 

MISCONSTRUED ITS APPLICATION OF OHIO RULES OF CIVIL PROCEDURE 
Knox County, Case No. 15CA6 4 

12(B)(6) WHEN IT GRANTED PLAINTIFFS’ FIRST MOTION TO DISMISS 

DEFENDANTS’ COUNTERCLAIMS FOR FRAUD.” 

I., II. 

{¶10} We address appellants’ first and second assignments of error together, as 

both claim error in the trial court’s implicit overruling of their motion to amend their 

answer and counterclaim. 

{¶11} Civ. R. 15(A) provides in pertinent part: 

A party may amend its pleading once as a matter of 

course within twenty-eight days after serving it or, if the 

pleading is one to which a responsive pleading is required 

within twenty-eight days after service of a responsive 

pleading or twenty-eight days after service of a motion under 

Civ.R. 12(B), (E), or (F), whichever is earlier. In all other 

cases, a party may amend its pleading only with the opposing 

party's written consent or the court's leave. The court shall 

freely give leave when justice so requires. Unless the court 

orders otherwise, any required response to an amended 

pleading must be made within the time remaining to respond 

to the original pleading or within fourteen days after service of 

the amended pleading, whichever is later. 

{¶12} While Civ.R. 15(A) favors a liberal policy when the trial court is confronted 

with a motion to amend a pleading, the role of this Court is to determine whether the 

trial court's decision was an abuse of discretion, not whether it was the same decision 
Knox County, Case No. 15CA6 5 

we might have made. Wilmington Steel vs. Cleveland Electric Illuminating Company, 60 

Ohio St.3d 120, 122, 573 N.E.2d 622 (1991). The term “abuse of discretion” connotes 

more than an error or law or judgment; it implies that the court's attitude is 

unreasonable, arbitrary, or unconscionable. Id. 

{¶13} Appellants sought to amend their counterclaims on February 6, 2015, to 

“address issues raised in Plaintiffs’ Motion to Dismiss and related pleadings.” They 

further sought to add a cause of action for voluntary bailment and conversion. 

{¶14} While appellants’ motion states that the amended counterclaims are 

attached to the motion, the proposed amendment is not attached to the original motion 

in the file as transmitted to this Court for review. Appellants did append a file-stamped 

copy of the amended counterclaims to their brief. However, appellants did not plead 

fraud with specificity in this amended document, and their cause of action for conversion 

and bailment was based on facts known to them at the time they filed their original 

answer and counterclaims. The trial court did not abuse its discretion in overruling the 

motion to amend the answer and counterclaims. 

{¶15} The first and second assignments of error are overruled. 

III. 

{¶16} In their third assignment of error, appellants argue the court erred in 

dismissing their cause of action for tortious interference with a business relationship. 

{¶17} To dismiss a complaint for failure to state a claim upon which relief may be 

granted under Civ.R. 12(B)(6), it must be shown “beyond doubt that the plaintiff can 

prove no set of facts in support of his claim which would entitle him to relief.” York v. 

Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144, 573 N.E.2d 1063 (1991). In applying 
Knox County, Case No. 15CA6 6 

this standard, all factual allegations in the complaint are taken as true and all 

reasonable inferences are made in favor of the nonmoving party. Appellate review of a 

Civ. R. 12(B)(6) dismissal is de novo. Hunt v. Marksman Prod. Div. of S/R Industries, 

Inc., 101 Ohio App.3d 760, 656 N.E.2d 726 (1995). 

{¶18} Civ. R. 12(B)(6) further sets forth what the trial court may consider in ruling 

on a motion to dismiss: 

When a motion to dismiss for failure to state a claim 

upon which relief can be granted presents matters outside 

the pleading and such matters are not excluded by the court, 

the motion shall be treated as a motion for summary 

judgment and disposed of as provided in Rule 56. Provided 

however, that the court shall consider only such matters 

outside the pleadings as are specifically enumerated in Rule 

56. All parties shall be given reasonable opportunity to 

present all materials made pertinent to such a motion by 

Rule 56. 

{¶19} The elements of tortious interference with a business relationship are: (1) 

the existence of a prospective business relationship; (2) the wrongdoer's knowledge 

thereof; (3) an intentional interference causing a breach or termination of the 

relationship; and (4) damages resulting therefrom. Gen. Medicine, P.C. v. Morning View 

Care Ctr ., 5th Dist. Tuscarawas No. 2003AP12–0088, 2004–Ohio–4669, ¶ 48.. 

{¶20} Appellants’ counterclaim alleged that appellees intentionally disrupted the 

relationship between MSD and Unit 16, Inc. by entering into a “second lease” with Unit 
Knox County, Case No. 15CA6 7 

16, Inc. for the purpose of conducting the business known as Banana Joe’s. The claim 

further alleged that appellees interfered with the business relationship between MSD 

and Unit 16 by locking MSD out of possession of the premises. The counterclaim 

alleged that appellees knowingly leased the premises to MSD for the specific purpose of 

MSD subleasing to Unit 16, for the operation of the business known as Banana Joe’s. 

Appellants alleged that they had been damaged by appellees’ actions. These 

allegations, when taken as true and construing all inferences in favor of appellants, set 

forth a claim for tortious interference with a business relationship. 

{¶21} In the trial court and before this Court, appellees rely on the findings of 

fact of the Mount Vernon Municipal Court and the evidence presented in that case to 

support their argument that appellants cannot demonstrate entitlement to relief for 

tortious interference with a business relationship. However, appellees’ argument relies 

on evidence outside the pleadings. In the instant case, the trial court did not convert the 

motion to a motion for summary judgment and dispose of it in accordance with Civ. R. 

56, and thus could not consider matters outside of the pleadings. Appellees’ argument 

is in the nature of a claim that the issues raised by appellants are res judicata; however, 

res judicata cannot be raised in a Civ. R. 12(B)(6) motion. See Wellman v. Wheeling & 

Lake Erie Railway Co., 5th Dist. Stark No. 999CA00161, 2000 WL 93986 (December 

29, 1999). The court erred in granting appellees’ Civ. R. 12(B)(6) motion as to the claim 

for tortious interference with a business relationship. 

{¶22} Appellants’ third assignment of error is sustained. 

 
Knox County, Case No. 15CA6 8 

IV. 

{¶23} In their fourth assignment of error, appellants argue that the court erred in 

dismissing their claim for fraud for lack of specificity. 

{¶24} To prove fraud, a plaintiff must establish the following elements: (1) a 

representation, or silence where there is a duty to disclose, (2) which is material to the 

transaction, (3) made falsely, with knowledge of its falsity, or with such utter disregard 

as to its truth that knowledge may be inferred, (4) with the intent to mislead another into 

relying on it, (5) justifiable reliance on the representation, and (6) resulting injury 

proximately caused by the reliance. E.g., Williams v. Aetna Financial Co., 83 Ohio St.3d 

464, 475, 700 N.E.2d 859 (1998). 

{¶25} In addition, a plaintiff alleging fraud must plead with particularity the 

circumstances constituting fraud. Civ. R. 9(B). The circumstances constituting fraud 

include the time, place, and content of the false representation; the fact misrepresented; 

the identification of the individual giving the false representation; and the nature of what 

was obtained or given as a consequence of the fraud. Aluminum Line Products Co. v. 

Smith Roofing Co., Inc, 109 Ohio App.3d 246, 259, 671 N.E.2d 1343 (1996). 

{¶26} Appellants’ claim for fraud does not set forth the facts constituting their 

fraud claim. They did not set forth the time, place, or content of the false 

representation, and generally allege that they were misled by appellees at the time they 

entered the lease. The claim does not set forth the fact misrepresented or the nature of 

what was obtained or given as a consequence of the fraud. The court did not err in 

dismissing the fraud claim for failure to plead with specificity as require by Civ. R. 9(B). 

{¶27} The fourth assignment of error is overruled. 
Knox County, Case No. 15CA6 9 

{¶28} The judgment of the Knox County Common Pleas Court dismissing 

appellant’s claim for tortious interference with a business relationship is reversed. The 

judgment is affirmed in all other respects. This cause is remanded to that court for 

further proceedings according to law. Costs are to be divided equally between the 

parties. 

By: Baldwin, J. 

Gwin, P.J. and 

Delaney, J. concur.